Alignment of Vietnamese Law on the Treatment of Juvenile Prisoners With International Standards and Norms

Abstract

Criminal sanctions, in spite of their obvious limitations, play an important role in the prevention of juvenile crime. In spite of international admonitions against the use of detention, Vietnam like many other South-East Asian countries still relies heavily on the deprivation of liberty, in both specialized juvenile institutions and adult prisons, in handling juvenile offenders. Because imprisonment, according to international standards, is meant to be used only as a last resort and for the shortest period of time possible, juvenile justice research has tended to ignore what is going on in places of detention and focus instead on diversion and alternatives to detention. This article focuses on Vietnamese law concerning the prison regimes applicable to juvenile detainees and the extent to which it complies with internationally accepted standards and norms. It reviews existing measures for the protection of juveniles against all forms of violence during their incarceration, including abusive disciplinary measures and the absence of independent oversight of prisons. It also considers arguments for and against the building of juvenile prisons to separate juveniles from adults as required by article 37 of the Convention on the Rights of the Child. It concludes with recommendations for legal reforms.

Keywords

children’s rights justice reforms juvenile justice prison youth detention

Introduction

Most of the legal research on juvenile justice in Vietnam focuses on the rights of juvenile offenders during criminal proceedings or the implementation of diversion mechanisms and alternatives to imprisonment. There is less research on issues relating to the enforcement of sentences of imprisonment or the laws governing prison conditions. As a State party to the United Nations Convention on the Rights of the Child (CRC), Vietnam is bound to protect the rights of children deprived of their liberty and to uphold international standards and norms relating the treatment of prisoners. However, the legal framework governing the conditions of imprisonment of juveniles and the implementation of that framework do not yet measure up to the nation’s international commitments.

Imprisonment is the most frequent sanction applied to both juvenile and adult offenders. Between 75 and 80 per cent of convicted persons are serving a sentence of imprisonment (Tran, 2019a: 32). Prison sentences and other sanctions imposed on juvenile offenders still focus on repression and punishment rather than their rehabilitation and social reintegration. Distinct ‘regimes’ exist for juvenile prisoners, but they are insufficiently and ineffectively implemented. Serious violations of juvenile prisoners’ rights are known to occur.

Under art 12 of the Vietnamese Penal Code 2015 (PC 2015),¹ the minimum age of criminal responsibility is 14 years. Persons, below the age of 18 serving a sentence of imprisonment are referred to as ‘juvenile prisoners’. Nonetheless, under art 73 of the Law on Enforcement of Criminal Judgments 2019 (LECJ 2019)² children detainees, once they reach the age of 18, become subject to the incarceration and treatment regimes applicable to adult prisoners.

According to art 98 of the PC 2015, penalties imposed on juvenile offenders include warning, fine, non-custodial reform and a term of imprisonment. Along with criminal penalties, juvenile offenders can be sentenced to a judicial measure known as education at reformatory schools. In addition, the PC 2015 provides three supervisory and educational measures applicable to juveniles exempted from criminal responsibility: a reprimand, community reconciliation and education in the commune. The stated purpose of these dispositions is to reduce the use of imprisonment in cases involving juvenile offenders. However, as confirmed in a recent Ministry of Justice and UNICEF (2019) review of the situation of children in conflict with the law in Vietnam, the use of imprisonment has decreased in recent years but is still highly frequent in cases involving juvenile offenders. During the period between 2016 and 2018, it was used in more than 91 per cent of the cases involving juveniles.

This over-reliance on imprisonment is due in part to the fact the provisions of art 91(2) of the PC 2015 limiting the criminal liability of juvenile offenders are not applied uniformly and that the exemption from criminal responsibility and the application of supervisory and educational measures are left at the discretion of investigating bodies, procuracies, and courts. Other reasons for the limited application of these dispositions of the Penal Code include justice officials’ lack of trust in the effectiveness of community-based sanctions, particularly when the latter are not strictly supervised, as well as a general lack of public support for alternatives to imprisonment. Courts are reluctant to order education at reformatory schools for juvenile offenders. This is due in part to a narrow judicial interpretation of the principle of proportionality focused almost exclusively on the seriousness of the offense rather than on the circumstances, needs, and best interests of the juveniles.

The Committee on the Rights of the Child (2012: para 72), after reviewing Vietnam’s compliance with its obligations under the CRC, expressed its concern about ‘the limited alternatives to child detention, and the absence of rehabilitation and reintegration programs’ in Vietnam and recommended that adequate human, technical, and financial resources be allocated to the juvenile justice system to implement diversion and other alternative measures to deprivation of liberty and provide rehabilitation and reintegration programs.

This article surveys the distance between the applicable international norms and standards that ought to guide the administration of criminal sanctions imposed on juvenile offenders and the existing detention regimes, as defined by law. The relevant legal framework includes the LECJ 2019 and legislation guiding for detailed implementation such as Decree (Nghi dinh),³ Circular (Thong tu)⁴ and Joint Circular (Thong tu lien tich).⁵ These regimes cover three aspects of prison management as it relates to juvenile prisoners: (1) the management of detention institutions, education, vocational training, and work; (2) the feeding, clothing, medical care of juvenile prisoners, and their opportunities for recreation; and (3) visits and telephone communication with parents and relatives. This article focuses on the first and third groups of regimes and also discusses key issues relating to the protection of juveniles against all forms of violence during their incarceration, including abusive disciplinary measures and the absence of independent oversight of prisons.

International standards and norms concerning treatment of juvenile prisoners

Article 40(1) of the CRC, stipulates that children alleged as, accused of, or recognized as having infringed the penal law have the right

to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

Referring to the obligations of States parties with respect to the conditions of detention and the treatment of juvenile detainees, the Committee on the Rights of the Child (2019) referred to, among others, the obligations to the following:

Provide children with a physical environment and accommodation conducive to their reintegration, including the protection of their privacy and the provision of opportunities to associate with their peers and to participate in sports, physical exercise, arts, and leisure-time activities;

Provide access to education suited to the children’s needs and abilities and, when appropriate, vocational training in occupations likely to prepare them for future employment;

Provide adequate physical and mental health care throughout the children’s stay in the facility, which should be provided, where possible, by the health facilities and services of the community;

Promote and facilitate frequent contacts by the child with the wider community, including communications with his or her family, friends and other persons, including representatives of reputable outside organizations, and the opportunity to visit his or her home and family.

When children are deprived of liberty, article 37(c) of the CRC requires that they must be kept separate from adults. The permitted exception to the separation of children from adults is stated in article 37(c) of the Convention and refers to situations where ‘it is considered in the child’s best interests not to do so’. The Committee on the Rights of the Child (2019: para 92) reiterated that States parties should establish separate facilities for children deprived of their liberty that are staffed by appropriately trained personnel and that operate according to child-friendly policies and practices. Rule 29 of the UN Rules for the Protection of Juveniles Deprived of Their Liberty (Havana Rules) stipulates that ‘[i]n all detention facilities juveniles should be separated from adults, unless they are members of the same family’. In this regard, the United Nations Standard Minimum Rules for the Treatment of Prisoners, also known as the ‘Nelson Mandela Rules’⁶ do not seek to regulate the management of juvenile detention facilities or correctional schools, but the rules of general application contained in Part I of the instrument are applicable to such institutions. Rule 11(d) of the Nelson Mandela Rules also requires that young prisoners must be kept separate from their adult counterparts.

Over the years, the UN has also adopted standards and norms that apply specifically to juvenile prisoners, including the UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), the Guidelines for Action on Children in the Criminal Justice System, the UN Model Strategies and Practical Measures on the Elimination of Violence against Children in the Field of Crime Prevention and Criminal Justice (Model Strategies), and the UN Rules for the Treatment of Women Prisoners and non-custodial Measures for Women Offenders (Bangkok Rules). Most of these standards have yet to be fully integrated into the Vietnamese juvenile justice and juvenile detention systems.

Juvenile prisoners in the Vietnamese prison systems

Vietnam has established two prison systems, respectively monitored by the Ministry of Public Security and the Ministry of National Defence. Sentenced juveniles can be incarcerated in either prison system. At present, the country has 53 prisons in 63 provinces, the majority of which located in remote areas where a large land base can be used for prison labor. Some provinces do not have a prison while others have more than one. From 2012 to 2017, the number of prisoners in general increased from 121.686 to 136.777 (Nguyen, 2019: 83).

Juvenile prisoners are detained in 27 prisons in numbers varying from 1 to 245, depending on the facility and its location (see Table 1). Long Hoa prison (domiciled in Ben Luc district, Long An province – the South of Vietnam) has the highest population of juvenile prisoners whereas other prisons hold between 1 and 53 juvenile prisoners. There are typically only 20–30 juvenile prisoners in each prison.

Table 1.

List of prisons incarcerating juvenile prisoners in Vietnam (upto 15 December 2018).

Order	Prisons	Number of juvenile prisoners
1	Vinh Quang	02
2	Quyet Tien	37
3	Hoang Tien	16
4	Ngoc Ly	24
5	Suoi Hai	37
6	Thanh Xuan	01
7	Ninh Khanh	25
8	Thanh Phong	18
9	Thanh Lam	01
10	Thanh Cam	01
11	So 6	22
12	Xuan Ha	04
13	Binh Dien	27
14	An Diem	08
15	Kim Sơn	30
16	A2	14
17	Song Cai	53
18	Gia Trung	42
19	Dac Trung	40
20	Dac P’Lao	02
21	Dai Binh	02
22	An Phuoc	01
23	Tong Le Chan	03
24	Long Hoa	245
25	Phuoc Hoa	03
26	Dinh Thanh	01
27	Cai Tau	03
Total		662

Source: Ministry of Public Security, Police Bureau of Administration of Prisons, Educational Facilities and Reformatory Schools.

Table 2.

CRC, UN rules, and Vietnamese legal provisions governing human rights and regimes of juvenile prisoners.

Children’s rights	Prison regimes	CRC	Nelson Mandela rules	Beijing rules	Havana rules	Bangkok rules	LECJ 2019 (Vietnam)
Right to be treated with humanity	Classification and placement	37(c), 40(1)	6–11	26.3–4, 28–9	27–30	2–4, 36, 40–1	28–30, 74
Right to be treated with humanity	Physical environment and accommodation		12–17, 21	26.3–4	31–37	5	48
Right to education	Education	28–9	104	26.1–2, 26.6	38–41	37–8	31, 74
Right to education	Vocational training	28–9	4(2), 92(1), 98(2)–(3), 99(2)	26.6	42–43	37	31, 74
Right to be protected from economic exploitation and hazardous work	Work	32	96–103		44–46		32–4, 74
Right to rest and leisure	Recreation	31	23		47		50, 75
Right to a standard of living adequate for development	Food	27	22		37		48, 75
Right to a standard of living adequate for development	Clothing	27	19–20		36		49, 75
Right to highest attainable standard of health, treatment, and rehabilitation	Medical care/health care services	24	24–35	26.2	49–55	6–18, 39	55, 75
Right not to be separated from parents, freedom of expression, and access to information	Contact with the outside world	9(3)–(4), 13, 17	58–63, 106–8	26.5	59–62	26–8, 43–6	52–4, 76
Right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment	Prevention of violence, restrictions, discipline, and sanctions	37(a)	36–57		63–78	19–25	10(8)

CRC: Convention on the Rights of the Child; LECJ: Law on Enforcement of Criminal Judgments.

In 2018, the number of juvenile prisoners was reported at 662, including 640 boys and 22 girls, a sharp decrease of 84 per cent of the 2010 figure (Ministry of Justice and UNICEF: 91). In addition, statistics show that in Vietnam, minors convicted for robbery and snatching represented the biggest group (26%), followed by those convicted for deliberate infliction of bodily harm upon another person, theft, and drug-related crimes (Ministry of Justice and UNICEF: 92). From 2016 to 2018, a term of imprisonment of up to 3 years was the penalty most frequently imposed on minor offenders (51.77%), as compared to non-custodial penalties (8.8%).

Vietnamese laws on treatment of juvenile prisoners: Assessment and recommendations based on relevant UN norms and standards⁷

The Vietnamese legal framework governing the imprisonment of juvenile offenders includes the LECJ 2019 and a system of other legislation and regulations, including decrees, circular, and joint-circular. Within that framework, there are special provisions designed for prisoners who are below 18 years of age (or juvenile prisoners).⁸ According to art 73 of the LECJ 2019, minor prisoners must serve their sentence under Section 4 Chapter III (from art 73 to art 76) and other provisions not contrary to those of that Section. Once they have reached 18 years, they are to be placed under the incarceration management and education regime applicable to adult prisoners.

Because of the absence of publicly available data on pre-trial detention, this article focuses only on juvenile prisoners rather than detained juveniles awaiting trial. The latter are held in custody houses and temporary detention centers established in all districts and provinces of Vietnam under management of the Ministry of Public Security and the Ministry of National Defence. Regimes of detained juveniles awaiting trial are governed by the Law on Enforcement of Custody and Temporary Detention 2015 and different from those of juveniles in prison. The main difference is that regimes of education, work, and vocational training do not apply to juveniles at pre-trial stages.

Regime of management, education, literacy learning, vocational training, and work

Regime of management

According to art 74(1) of the LECJ 2019, juvenile prisoners must be incarcerated under a separate regime suitable to their age, health, gender, and personal characteristics. Under art 30 of this Law, a prison must be divided into the following two main sections: (1) a section for prisoners serving sentences of over 15 years imprisonment or life imprisonment and dangerous recidivists and (2) a section for prisoners serving a sentence of 15 years or less, prisoners serving a sentence of more than 15 years imprisonment that has been reduced to less than 15 years as a result of a good rehabilitation record. The majority of juveniles are detained in the second section. In both sections, juvenile prisoners must be kept separately from adults.

Vietnamese law basically complies with the CRC (art 37(c)), Nelson Mandela Rules (Rule 26.3) and Havana Rules (Rule 29) governing the management of juvenile detention facilities. Vietnam reserves separate parts in each prison for juvenile detention rather than establishing a separate prison system. Detention facilities are decentralized and facilitate access to and contact between juvenile prisoners and their family members. However, at present, there are no open detention facilities for juvenile offenders as suggested by the Havana Rules (Rule 30). All prisoners must be incarcerated in detention rooms and can only leave with the formal permission of the prison’s Director. Security is provided by armed guards 24 hours a day.

To improve the current situation, Nguyen (2017: 32) recommends that Vietnam should establish three stand alone detention facilities for juveniles, each with a capacity to hold up to 350 prisoners, respectively in the northern, central and southern regions of the country. Although Nguyen’s recommendation aims to improve the management of the detention and education of juvenile prisoners, it raises a number of practical issues, including the costs of these new establishments, specialized staffing, and the need to ensure family access to and contact with juvenile prisoners. First, the Vietnamese Ministry of Public Security has been strictly implementing its downsizing and cost-cutting policy and new investments in prison infrastructures seem unlikely at this point. Second, from north to south, the country spans a distance of 1650 km. Therefore, locating the proposed new institutions in the three main parts of Vietnam would only complicate family visits and make it more difficult to comply with the Nelson Mandela Rules (Rule 59) concerning the holding of prisoners, to the extent possible, in prisons close to their home or place of social rehabilitation. Third, about 40 per cent of juvenile prisoners are serving more than 3-year prison sentences and 91.9 per cent of total juvenile prisoners are between 16 and 18 years of age (Nguyen, 2019: Appendixes 3, 5). This means that, under the present regime, a large number of juvenile prisoners may face a transfer to adult prisons after reaching adulthood, thus disrupting their participation in programs. In addition, it is likely that Nguyen’s recommendation would not comply with Havana Rules (Rule 30) that ‘the number of juveniles detained in closed facilities should be small enough to enable individualized treatment’.

A different solution would be reorganizing the current system to mirror the demand and necessity. Namely, a separate section could be established in five prisons in each region of the country, each with a capacity to hold up to 100 juvenile prisoners. In that scenario, Vietnam would be able to count on 10 prisons with a separate section for juvenile prisoners distributed throughout the whole country. Each section could be redesigned to ensure the security, safety, education, vocational training, and rehabilitation of juvenile prisoners, without unnecessarily limiting opportunities for family visits. The sections could be designed to ensure that juvenile prisoners cannot hear, see, or communicate with adult prisoners. This solution, coupled with a plan to open more open detention facilities, would not only be more cost-effective but also easier to implement while using and retraining existing staff.

At present, art 73 of the LECJ 2019 provides that when a juvenile inmate reaches 18 years of age, he or she shall be subject to incarceration and education regime applicable adult prisoners. These provisions should be amended as the transfer of juvenile prisoners to adult prisons as soon as they turn 18 years shall obviously affects them psychologically, but also impedes their rehabilitation and successful social reintegration. In this regard, the Committee on the Rights of the Child (2019: para 32) recommends that States parties

allow the application of the child justice system to persons aged 18 and older whether as a general rule or by way of exception. This approach is in keeping with the scientific evidence on child development and neuroscience that shows that brain development continues into the early twenties.

The Committee on the Rights of the Child (2019: para 93) also emphasizes that the requirement to separate children deprived of liberty from adults ‘does not mean that a child placed in a facility for children should be moved to a facility for adults immediately after he or she reaches the age of 18’. A continued stay in the children facility should be possible when this is in his or her best interests and not contrary to the best interests of other children in the facility.

Regime of education, literacy learning, and vocational training

Article 74(2) of the LECJ 2019 imposes a duty on prisons to provide juvenile prisoners with academic education, legal information, and vocational training suitable for their age, educational level, gender, and health, and make necessary preparations for them to successfully reintegrate into the community upon their release. Prisons must provide access to primary and lower secondary education for every inmate. Primary education is compulsory for prisoners who have not completed a primary education program. Learning and vocational training programs for juvenile prisoners should be regulated by the government, but the legislation has not yet been adopted.

In comparison to international standards, namely the Havana Rules (Rules 38–41), Vietnamese laws focus more on the length rather than the contents and quality of the education, literacy, and vocational training programs. This is perhaps one of the reasons that limit their implementation. The majority of the teaching staff only receives training on incarceration-related skills as opposed to the knowledge and skills required to communicate with and assist prisoners (Phan, 2018: 15). In addition, as observed by Nguyen (2019: 92–93) with respect to literacy programs, prisons face difficulties recruiting the services of local school teachers, not only because of a lack of personnel or insufficient funding, but also because teachers are afraid for their own safety. For legal and civic education, an umbrella curriculum was adopted at the end of 2017 without establishing common textbooks. The contents of the educational program are not adapted to the prisoners’ low and uneven literacy levels. In addition, Vietnamese laws do not recognize age- and gender-specific programs and services (such as consultancies on sexual abuse or violence) and women’s health care education, as recommended by the Bangkok Rules (Rule 38) for juvenile female prisoners (Dinh and Tran, 2018: 101–102).

According to Decision No. 1041/QD-TTg of the Prime Minister adopted on 19 August 2019, the government is required to draft a Decree to specify the various education regimes stipulated in the LECJ 2019. Therefore, the government still has to review every aspect of the education programs for juvenile prisoners and assess their implementation. Attention should be given not only to the length and format of these programs, but also to their contents, quality, and delivery. These programs should be very similar to regular educational programs and diplomas or certificates awarded to juvenile prisoners should be issued by regular education institutions.

In practice, from 2011 to 2016, no juvenile prisoners received vocational training or earned a certificate (Nguyen, 2019: 99). Surveys show that the majority of individuals who complete a sentence of imprisonment do not have identifiable vocational skills and are destined to low-paying temporary occupations (Nguyen, 2019: 100). Some prisoners receive vocational training related to trades such as a tailor, builder, carpenter, and electrician. Vocational training can be also conducted through work, but in general, the work in question (knitting, peeling cashew nuts, making fake eyelashes, cultivating, breeding, etc.) does not support the acquisition of skills that will be useful to the prisoners trying to integrate the labor market. Hoang (2019: 90) also explained that the lack of senior teachers and the suspension of the prisons work contracts with many companies created additional difficulties in the implementation of vocational training programs.

Prison authorities must devise ways to work more closely with training institutions, private companies and local communities in designing worthwhile vocational programs that can prepare juveniles for the labor market and facilitate their social reintegration. Existing laws does not yet favor these kinds of arrangements, but the Ministry of Public Security (2019) has permitted some pilot prisons to establish ‘production areas’ and associate themselves with companies to establish ‘work and vocational training points’ outside prisons. The results of this initiative have thus far been positive.

The work regime

Muntingh (2010: 275) stated that

the essence of imprisonment is to rehabilitate a prisoner through labor in order to acquire skills by giving him adequate training and support to be useful to the society and to have a crime free life after serving his jail term.

Article 74(3) of the LECJ 2019 emphasizes that juvenile prisoners must work in areas where they are separated from adult prisoners and only perform work suitable to their age; they must not be required to do heavy or dangerous work, nor should they work in contact with hazardous substances. In reality, as previously mentioned, juvenile prisoners tend to be engaged in simple jobs while serving their imprisonment sentences.

Vietnamese legal provisions governing prisoners’ work regimes are basically compatible with relevant international standards, namely Nelson Mandela Rules (Rules 96–103) and Havana Rules (Rules 44–46). Nonetheless, two issues require attention: the implementation of labor opportunities outside prisons and the prisoner’s access to the income they earn through their labor. First, the Havana Rules encourage, if possible, the opportunity to perform remunerated labor within the community to help juvenile prisoners find appropriate jobs after their release. A proposal for organizing prisoners’ work outside prisons was included in the Draft LECJ 2019 made by the Ministry of Public Security. Unfortunately, however, the proposal was withdrawn because of the lack of support by members of the National Assembly (Thai, 2019). The majority of them were apparently concerned that the proposal, in addition to practical security and staffing issues it might create, placed too much emphasis on profit making and not enough on the goal on educating and rehabilitating prisoners (Vietnam News, 2018). Second, contrary to Rule 46 of the Havana Rules, prisoners are not entitled to send their earnings from work directly to their families, to other persons outside prison, or to compensate crime victims.

Visits and communication with relatives

Regime of meeting with relatives

Article 76(1) of the LECJ 2019 provides that incarcerated minors may meet their relatives, at most, three times a month, each visit lasting for no more than 3 hours. The number and length of the meetings can be increased in accordance with the law. In this regard, the law is more favorable to juvenile than adult prisoners, because the latter are only allowed to meet their relatives once a month for no more than 1 hour, which can only be extended to 3 hours at the discretion of the prison director (LECJ 2019: art 52(1)). Nonetheless, according to art 3(4) of Circular No. 14/2020/TT-BCA adopted on 10 February 2010, juvenile and adult prisoners who violate detention facilities’ regulations or are facing one of the disciplinary measures provided in art 43(1) of the LECJ 2019 can only meet their relatives once every 2 months for no more than 1 hour until the director of the detention facility observes an improvement in the prisoner’s conduct as specified in the law. These provisions are incompatible with art 39(i) of the Model Strategies according to which Member States are urged, as appropriate and while taking into consideration relevant international human rights instruments to ensure that ‘disciplinary sanctions for detained children do not include a prohibition of contact with family members’. In the international context, it is reported that children deprived of their liberty in institutions are often ‘not allowed to maintain regular contact with their families and friends’ (Nowak, 2019: 532). Under Vietnamese law, juvenile prisoners are even not permitted to meet their friends. Moreover, they are not allowed to leave the prison to visit their home and family, or for other special purposes, such as attending the funeral of the deceased or visiting the bedside of a critically ill relative as suggested by Rule 58 of the Havana Rules.

There are no specific legal provisions for the protection of the juvenile prisoners’ privacy, and their unrestricted contacts and communication with their advocates or defense counsel. By contrast, all meetings are kept under strict management and supervision (Circular No. 14/2020/TT-BCA: arts 5–8). Visits and contacts with family members are treated as a privilege, one that can be suspended, rather than a right, thus underestimating the benefits of these contacts for the rehabilitation and reintegration of the juveniles. The need to ensure security is also invoked as a reason for the heightened surveillance of visitations. This is contrary to Rule 67 of the Havana Rules which states that ‘restriction or denial of contact with family members should be prohibited for any purpose’. Limiting the juvenile prisoners’ access to legal counsel is particularly problematic. Art 39(a) of the Model Strategies enjoin States ‘to ensure that children in detention and their parents and/or legal guardians are aware of their rights and can access the mechanisms in place to protect those rights, including access to legal aid’.

Regarding the kind of individuals and organizations that may be permitted to meet prisoners, in particular juvenile prisoners, Tran (2019b: 22) argues that instead of enumerating the persons considered as relatives and limiting to three the number of relatives allowed to visit, the law should define the notion of ‘relatives’ more broadly without limiting the number of relatives who can be permitted to visit. This is in line with art 39(i) of the Model Strategies suggesting that Member States ‘encourage and facilitate, wherever possible and in the best interests of the child, frequent family visits and regular contact and communication between children and their family members, as well as with the outside world’. At their level of physical and psychological development, juvenile prisoners need the support and encouragement of relatives during their time in prison. Meetings with relatives, friends, other individuals, and organizations may motivate juvenile prisoners to actively participate in the rehabilitation process. In fact, prison visits and contact with family and friends facilitate the reintegration of offenders and can help reduce recidivism (Dandurand, 2011; Nguyen and Dandurand, 2013; Penal Reform International and Thailand Institute of Justice, 2018). This ‘is a crucial prerequisite for the proper integration of a child but also has a positive impact on the psychological health and well-being of children in detention’ (Nowak, 2019: 269; UNODC, 2018). Moreover, ‘special attention needs to be paid to the environment in which visits take place, affording as much privacy and informality as possible’ (Coyle and Fair, 2018: 148). Finally, due consideration should also be given to granting children deprived of their liberty permission to visit their homes or to leave the institution for educational, vocational, or other important reasons (see CRC, art. 37(c); Havana Rules, Rule 59).

Regime of telephone communication with relatives

This regime is recognized by art 76(2) of the LECJ 2019. Accordingly, juvenile prisoners are entitled to contact through telephone their relatives domestically, at most, four times a month, each communication lasting for not more than 10 minutes, while under the supervision of prison officers, and the juveniles must pay for these telephone calls. In reality, Huynh observed that a number of detention facilities in Vietnam are not equipped with appropriate telephones that record the duration and charge of each call, instead prisoners are required to sign a logbook entry after making their calls (Huynh, 2019: 17). Therefore, it is only when telecom suppliers totalize monthly subscriptions that prisons know the call duration of each inmate and the charge he or she must pay. This causes difficulties for ensuring the prisoners’ regime of telephone communication.

Article 12 of Circular No. 14/2020/TT-BCA further regulate prisoners’ telephone communication with relatives. Commendations for good behavior or disciplinary measures can affect the number of calls a prisoner is allowed to make. The content of these communications is strictly monitored electronically and by authorized personnel. Telephone communications that deviate from what is authorized may be interrupted immediately and disciplinary measures against the offender may be applied.

Juvenile prisoners may also communicate in writing with their relatives. Under art 54 of the LECJ 2019, juvenile and adult prisoners are allowed to send two letters a month. Prison officials examine and censor all correspondence sent and received by prisoners. Contrary to international standards, namely Rule 60 of the Havana Rules, the privacy of communications between juvenile prisoners and their relatives is neither recognized nor protected. In that regard, Tran recommends that the law should only allow the recording of telephone conversations between juvenile prisoners and their relatives when there exist sufficient grounds for suspicion that they are intentionally committing a criminal offense (Tran, 2019b: 38–39). Furthermore, if deemed necessary, supervision of telephone communications should be conducted randomly and only for short periods of time. Very importantly, one must consider that the detection and reporting of violence against children and violations of human rights that occur in prison is greatly hampered by the fact that prisoners are unable to report these incidents and seek the protection of the law when they cannot communicate privately with people they trust and fear reprisals from prison authorities.

Scholars suggested that a pilot program should be conducted to increase juvenile prisoners contacts with their family through new communication technologies such as video calls (Huynh, 2019: 22; Tran, 2019b: 37–38). This may improve the relations between juvenile prisoners and their family and potentially contribute to the rehabilitation process. To do so, legislative changes and some modest investment in infrastructure would be required. However, it should be clear that the use of such technologies should be used to enhance offenders’ contacts with their family, and not in any way to reduce the length or frequency of family visits.

Violence against juvenile prisoners, disciplinary measures, and independent oversight

Article 19 of the CRC requires State parties to take appropriate measures to effectively protect children from all forms of violence, and art 37(a),(c) specifically prohibits ‘torture or other cruel, inhuman or degrading treatment or punishment’ against children and requires that ‘[e]very child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age’. The UN Model Strategies and Practical Measures on the Elimination of Violence against Children in the Field of Crime Prevention and Criminal Justice (Model Strategies) fully articulate the responsibility of the police and other criminal justice institutions and agencies to prevent and respond to violence against children (Dandurand, 2015). The Model Strategies also emphasize the importance of adopting a comprehensive approach to that task and to prevent violence against children in institutional settings. Despite all these official admonitions, the United Nations Global Study on Children Deprived on Liberty reports that torture and other forms of cruel, inhuman or degrading treatment or punishment against juveniles deprived of liberty are still practiced in institutions (Nowak, 2019: 529).

Vietnam has established a legislative framework and some mechanisms to prevent and respond to violence against juvenile prisoners. The Committee against Torture (2018: para 3) observed that Vietnam has accessed and ratified the majority of international instruments relevant to the UN Convention against Torture (CAT). From 2015 to present, Vietnam has revised and adopted its criminal legislative framework to harmonize domestic law with international law. Articles 10(8), 27(1)(a),(g) of the LECJ 2019 prohibits torturing and using brutal, inhuman or humiliating treatment or punishment against prisoners, including juveniles and also recognizes the rights to have their lives, health, assets, dignity protected and respected, and to lodge complaints and denunciation, request amnesty or claim damages as per the law. For minor prisoners, art 4(5) of the LECJ 2019 specifically recognizes the basic principle that the ‘execution of judgments against minors mainly aims to educate and help them correct their wrongful acts, develop healthily and become useful to the society’.

Mechanisms for detecting and responding to violence against juvenile prisoners have been introduced by Vietnam. The procuracies are assigned tasks and powers to oversee the adherence to law of competent authorities, other agencies, organizations, and individuals involved in the execution of criminal judgments. The procuracies may directly oversee the criminal judgment enforcement activities, or dossiers, of authorized agencies and make appeals, proposals or requests. In addition, the LECJ 2019 (art 176–193) also has specific provisions governing the settlement of complaints and denunciations against unlawful acts and/or decisions of authorities in the process of enforcing criminal judgments.

Despite these measures, the relevant Vietnamese legal framework still has a number of shortcomings, particularly with respect to disciplinary practices in detention institutions. According to art 43 of the LECJ 2019, the disciplinary measures imposed on juvenile offenders are essentially the same as those imposed on adults who violate prison regulations or commit an illegal act. They include reprimands, warnings, and confinement to a disciplinary cell for up to 10 days. The only difference is that when juveniles are confined to a disciplinary cell physical restraints are not necessarily used. Confinement of a juvenile to a disciplinary cell is obviously contrary to various UN norms and standards including the CRC (art 37(a)), the Havana Rules (Rule 67), and the Nelson Mandela Rules (Rule 43). In its latest Concluding Observation, the Committee against Torture (2018: para 30(c)) expressed its concern about the

use of ‘security rooms’ and ‘disciplinary rooms’ in Vietnam where prisoners can be isolated in solitary confinement or small groups for up to three months and the reported use of corporal punishment, shackling and harsh disciplinary measures against inmates by prison officials or other prisoners who act under their instructions.

Most importantly, Vietnam has neither established a national system to independently monitor and inspect all places of detention and receive complaints nor permitted prison visits by international organizations (Committee against Torture, 2018: para 34). In Vietnam, very little information is publicly available about prison practices because of the strict security policies of the Ministry of Public Security and Ministry of National Defence. In 2018, a joint report by ACAT, BPSOS, CAT-VN, CSW, LIV, and VN-CAT (ACAT et al., 2018) enumerated violations relating to various forms of torture committed by Vietnamese criminal justice authorities, including prison officers. However, this report addressed violence against adult rather than minor prisoners. In 2018, there was a case where three prison officers were convicted for using torture against five minor prisoners entering Long Hoa prison for only 3 days. According to the indictment, these prison officers used rubber canes to hit the bums and thighs of prisoners (Dong, 2019; Phuong, 2018). One of the victims died as a result of depression, exhaustion, hunger and thirst. Due to the death of the juvenile prisoner, the case went to trial, but in other situations of violence against juvenile prisoners either by prison officials or other prisoners rarely come to the attention of the public.

According to CAT and the Model Strategies, one of the most effective preventive measures against violence against prisoners is regular and unannounced inspection of detention places. However, in Vietnam, the procuracies only conduct two announced direct inspections a year on prisons located in their provinces. Unannounced inspections are very rarely carried out (Bui, 2017). When serious legal violations are detected, local procuracies avoid conflict and rarely request the concerned agency to address the issue or repair the harm done (Bui, 2017). However, prisoners are entitled to lodge complaints and denunciation but all their correspondence, telephone, and direct communications with relatives are strictly monitored. Therefore, ‘the vast majority of prisoners and detainees in Vietnam do not submit complaints, while the few who do raise complaints or ask for legal representation are often harshly disciplined’ (Committee against Torture, 2018).

From the foregoing, it can be concluded that the Vietnam does not have the necessary legal framework or mechanisms to effectively prevent, detect, and respond to violence against prisoners, even less so juvenile prisoners. The relevant international standards are basically ignored. Particularly, attention should be given to recommendations of the Committee on the Rights of the Child also that

Solitary confinement should not be used for a child. Any separation of the child from others should be for the shortest possible time and used only as a measure of last resort for the protection of the child or others. Where it is deemed necessary to hold a child separately, this should be done in the presence or under the close supervision of a suitably trained staff member, and the reasons and duration should be recorded (Committee on the Rights of the Child, 2019: para 95(h)).

Moreover, Vietnam should introduce

a national mechanism that independently, effectively and regularly monitors and inspects all places of detention without prior notice that is able to meet in private with detainees and receive complaints and has institutional independence. The mechanism should report publicly on its findings and be able to raise detention conditions or conduct in places of detention amounting to torture or ill-treatment with the authorities. (Committee against Torture, 2018: para 35(b))

For child victims of violence within the justice system, complaint mechanisms that are ‘safe, confidential, effective and easily accessible’ (Model Strategies, para 43(a)) should be established. In this regard, Vietnam should follow the recommendations of the Office of the Special Representative of the Secretary-General on Violence against Children (2016) and develop effective, child-sensitive counseling, reporting and complaint mechanisms, available to and accessible by all children, especially those who are deprived of their liberty.

Conclusion

Comprehensive juvenile justice reforms are concerned with every aspect of the justice system, but they must pay special attention to the rights of juveniles deprived of their liberty. Prisoners are deprived of liberty but their fundamental rights and freedoms must still be protected (Rouhi et al., 2017: 71). International children rights standards require not only that deprivation of liberty be used only ‘as a measure of last resort and for the shortest appropriate period of time’ (CRC, art 37(b)), but also that specific measures be adopted to protect the rights of juvenile detainees and protect them against violence (CRC, art 37(c)). Very importantly, the best interests of the child should be a primary consideration in every decision that concerns a child.

Vietnam’s legal regimes relating to the basic conditions of juvenile fall short in many ways of meeting international standards. Several provisions of the LECJ 2019 are incompatible with and even contrary to international standards. There is no clear legal framework or effective mechanisms to prevent, detect, and respond to violence against juvenile prisoners. Complaint mechanisms available to juvenile prisoners or their advocates are hugely deficient. Some incidents of violence against juvenile prisoners, including serious injuries and the violent death of a juvenile prisoner have been reported by the media, but in the absence of transparent complaint mechanisms, there is no way to determine the extent of that problem in Vietnamese institutions. Most of the legislation required to fully implement the LECJ 2019 has yet to be adopted. Open detention facilities are not allowed by the law and all activities of juvenile prisoners must therefore be carried out within the prison facilities. There are no provisions for periodic health checks for prisoners. Juvenile prisoners are not entitled to leave prisons to visit their families, attend the funeral of their relatives or for other appropriate circumstances. Family visits and telephone communications with relatives are excessively supervised and treated as a privilege that can be suspended for disciplinary reasons. The contents and quality of the education and vocational training available to juvenile prisoners remains problematic and the latter are ill-prepared for their successful return to the community.

These and other shortcomings of the legislative framework, combined with socio-economic difficulties, are responsible for many of the problems that have plagued the management of prison sentences for juvenile offenders. The geographic dispersion of juvenile prisoners and variations in the size of the juvenile population in each prison hinder the proper organization of education, vocational training, and work programs. Inside some prisons, despite being separately incarcerated, juvenile prisoners can still see, hear, imitate, and be influenced by adult prisoners.

Full compliance with the relevant international standards and norms relating to the conditions of detention of juvenile offenders will require substantial amendments to the existing law and regulations. Many areas require urgent attention in order to fully protect the rights of juvenile prisoners. Among them, as a matter of high priority, credible mechanisms must be established to ensure that juvenile prisoners can safely report and receive protection against violence and other human rights violations. A related priority is the establishment of a mechanism to provide for independent and unannounced prison inspections in order to enhance the transparency of prison conditions and bring the shortcomings of existing prison practices under public scrutiny. At the same time, a forward looking, rights based legislative agenda must be adopted to the present antiquated legal framework with one that not only respects children’s rights but also reflect international best practices in protecting children, upholding their rights, and preparing them for a successful social reintegration.

However, a focus on improving prison conditions should not detract from the overriding priority of reducing the use of imprisonment for juvenile offenders to a minimum and introducing diversion and alternative community-based supervisory and educational measures. This will require investments in capacity building and the establishment of new agencies, organizations, and services to support juvenile offenders and enforce supervisory and educational measures.

Footnotes

Acknowledgements

The authors are very thankful to the assessors for their constructive comments on their article. They greatly appreciate the consideration and encouragement of Professor Ursula Kilkelly, the Co-editor in Chief of Youth Justice.

Funding

The author(s) received no financial support for the research, authorship and/or publication of this article.

ORCID iDs

Duy Tan Huynh Le

Yvon Dandurand

Notes

Author biographies

Duy Tan Huynh Le is a Doctor of Law, La Trobe University, Australia, and a Lecturer of Criminal Law Faculty, Ho Chi Minh City University of Law, Vietnam.

Yvon Dandurand is a Professor Emeritus, School of Criminology and Criminal Justice, University of the Fraser Valley, Abbotsford, B.C., Canada, and Fellow and Senior Associate, International Centre for Criminal Law Reform and Criminal Justice Policy, Vancouver, Canada.

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Alignment of Vietnamese Law on the Treatment of Juvenile Prisoners With International Standards and Norms

Abstract

Keywords

Introduction

International standards and norms concerning treatment of juvenile prisoners

Juvenile prisoners in the Vietnamese prison systems

Vietnamese laws on treatment of juvenile prisoners: Assessment and recommendations based on relevant UN norms and standards 7

Regime of management, education, literacy learning, vocational training, and work

Regime of management

Regime of education, literacy learning, and vocational training

The work regime

Visits and communication with relatives

Regime of meeting with relatives

Regime of telephone communication with relatives

Violence against juvenile prisoners, disciplinary measures, and independent oversight

Conclusion

Footnotes

Acknowledgements

Funding

ORCID iDs

Notes

Author biographies

References

Vietnamese laws on treatment of juvenile prisoners: Assessment and recommendations based on relevant UN norms and standards⁷